Privacy in text messages is weighed in murder case

PROVIDENCE — What privacy rights should be extended to text messages proved central to state Supreme Court arguments Thursday.

BY KATIE MULVANEY

PROVIDENCE — What privacy rights should be extended to text messages proved central to state Supreme Court arguments Thursday.

The high court, before a packed courtroom, heard arguments in the murder case of Michael Patino, the state’s first test of whether police need a warrant to search cellphones.

The state asked the court to overturn a ruling that tossed most of the evidence against Patino, including text messages and portions of his statement to police about the death of 6-year-old Marco Nieves. Now-retired Superior Court Judge Judith Colenback Savage found that the Cranston police had illegally searched cellphones and then used that information to question Patino.

The arguments came as the U.S. Supreme Court, too, is poised to consider the subject as courts nationwide confront legal challenges raised by emerging technology.

Assistant Attorney General Aaron

L. Weisman argued that Patino lacked standing to challenge the admission of text messages found on his girlfriend’s phone, even if police scrolled through those messages before getting a search warrant. “You have no expectation of privacy on a phone that doesn’t belong to you,” he said.

The police had taken photos of the messages before securing a warrant to preserve them from remote deletion, he said. But George J. West argued for Patino that the police overstepped their bounds by illegally searching the apartment and cellphones. Patino, he said, had a privacy interest in the messages found on the phone of his girlfriend, Trisha Oliver. Oliver was Marco’s mother.

“It’s clearly part of a string of conversation between two people over a period of time,” West said.

Justice Maureen McKenna Gold- berg questioned how privacy rights could be extended to messages contained on another person’s phone. “If you have a privacy interest in my phone, what are my rights?”

West drew a parallel between text messages and a phone conversation. Police are required to get warrants to wiretap a phone. “This was a confidential communication between two people in an intimate relationship,” he said.

Anyone sending a text message must realize that its contents can be widely disseminated with just a click of a button, Justice Gilbert V. Indeglia observed. “In this area, it is almost unreasonable to expect privacy.”

Oliver called 911 at 6 a.m. on Oct. 4, 2009, to report that Marco had stopped breathing. The police found Marco unresponsive at the Riverbend Apartments. He died 11 hours later at Hasbro Children’s Hospital, his abdomen swollen and his small intestine torn by blows.

Sgt. Matthew J. Kite remained at the apartment, along with Patino, and the couple’s 14-month-old daughter. Kite noticed dark vomit, possibly indicating grave injuries, and several cellphones, according to an affidavit requesting a search warrant.

A phone Kite believed belonged to Oliver “beeped” around 6:40 a.m., police said. Kite went to answer it thinking it might be Marco’s father, they said.

Kite received a prompt indicating an incoming text message couldn’t be delivered, police said. In the process of trying to disengage, he viewed a unsent message addressed to “DaMaster” that read “Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.”

He became suspicious. The police began photographing the text messages on the phone, police said.

Patino has pleaded not guilty. He contends he was playing with Marco and accidentally hurt him.

She rejected the state’s arguments that Patino lacked standing to contest the text messages that officers viewed and photographed. Savage struck the text messages, all cellphones contents and records, and critical portions of Patino’s statements.

Savage concluded that Patino’s property rights to the phone should not be the controlling factor. “What should control are the contents of the communications rather than the device used to communicate,” she wrote.

Text messaging, she found, has all but replaced face-to-face conversations, cellphone conversations, or email. They are “often raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions,” she said.

The judge said Patino “made a preliminary showing that numerous sworn statements made by police officers in a dozen warrants were either deliberately false or made in reckless disregard of the truth,” and characterized police testimony as “quite evasive, if not wholly lacking in credibility.”

The state disputed those findings Thursday. Weisman suggested that perhaps the best police practices weren’t employed. “Ne farious? No.”

Savage’s conclusion that Kite had “just made up the story … the state would suggest is clearly wrong.”

State lawmakers in 2012 approved a bill mandating that police get a warrant to search cellphones. Governor Chafee vetoed it, finding that the courts, not the legislature, are better suited to resolve such cases. kmulvane@providenejournal.com ?